January 11, 2016

Conservative U.S. Supreme Court justices were what news reports called hostile in their questioning of union lawyers Monday during arguments in Friedrichs v. California Teachers Association, a case that could undercut the financial stability and the political clout of public employee unions in California and nearly two dozen states (see news stories here,here, and here).

Ten teachers in California who declined to join their local unions filed the lawsuit against the state and the 300,000-member CTA, charging that a state law requiring them to pay fees to cover bargaining costs coerces them to support a union whose positions they disagree with, violating their First Amendment speech rights.

The plaintiffs want the court to overturn a four-decades-old court decision in Abood v. Detroit Board of Education. That ruling said non-union employees don’t have to pay that portion of union dues that underwrites the union’s political activities, including the costs of backing candidates and lobbying governments on issues not related to working conditions and pay. But the court said that states could require all employees to pay “fair-share” or “agency” fees to cover costs related to negotiating working conditions and bread-and-butter pay matters, since the union represents members and non-members alike. In California, fair-share dues make up about 40 percent of a union member’s dues.

Going Deeper

In their lawsuit, attorneys for the Friedrichs teachers argue there is no distinction between politicking and bargaining, because negotiating constitutes “political speech designed to influence governmental decision-making.” Rebecca Friedrichs, a veteran teacher in the Savanna School District in Anaheim, said she is forced to underwrite the union’s positions on tenure, layoffs and pensions with which she disagrees. Many fees-paying teachers “have moral beliefs and fiscal standards that place them on the exact opposite side of union politics,” she wrote in the Orange County Register.

Four of the court’s conservative justices had expressly invited a challenge to Abood in a related decision in 2014. In an ominous sign for unions, a fifth justice, Antonin Scalia, who had supported fair-share fees in an earlier decision, indicated Monday that he had changed his position.

“The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition,” including the decision by the government about whether to give pay increases, Scalia said.

Justice Anthony Kennedy said that mandatory dues “require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.”

In its brief, the State of California, which was named in the lawsuit, argued that it’s in the state’s interest as an employer to negotiate with one financially stable union representing workers’ interests.

Related

The CTA and other public employee unions that filed briefs reiterated the court’s reasoning in Abood that mandatory fees prevent “free-riders” – workers who may be satisfied with the union but decide to save money by not contributing to it. Non-member teachers’ views are not suppressed by fair-share fees, they said.

“If we are going to have collective bargaining in the public sector, mandatory agency fees can serve important state interests without unduly burdening citizens’ speech,” California Solicitor General Edward C. DuMont told the justices Monday.

About 10 percent of the state’s teachers pay fair-share dues. But in Wisconsin, which eliminated the fair-share fees requirement in 2011, teachers union membership subsequently dropped 50 percent, the National Education Association reported last year.

The state argued that Friedrichs and the other plaintiffs never presented evidence that bargaining violated their political beliefs. Because the Friedrichs attorneys argued that Abood needed to be overturned for them to prevail, lower courts agreed to expedite their lawsuit without a trial.

The four liberal Supreme Court justices said there was no basis for overturning a four-decades-old decision that had been working well. Justice Stephen Breyer disagreed that mandatory contributions for representation in collective bargaining was not a core speech issue. Negotiating for wages, hours and working conditons is “pretty far removed from the heart of the First Amendment,” he said.

Unions have said that the teachers’ First Amendment argument is a ruse that’s part of conservative groups’ steady attack to weaken public employee unions’ influence and drain their treasuries.

CTA President Eric Heins, who attended today’s oral arguments, said that conservative justices’ antagonistic questions were expected but he didn’t conclude that the case was lost. Oral arguments are not a reliable prediction of a decision, he said.

The CTA has helped defeat three initiatives in the past 20 years that would have prevented unions from automatically collecting dues for political purposes. One of those initiatives, on the ballot in 2012, would have also banned contributions to political candidates.

“The Friedrichs lawsuit is an end-run around to the courts to try to win what opponents of unions have been unable to do at the ballot box,” Heins said.

EdSource asked law professors and attorneys who have followed and written about Friedrichs v. California to share their perspectives on today’s oral arguments and how they may affect the outcome of the case. They are Deborah La Fetra, Principal Attorney, Pacific Legal Foundation; Charlotte Garden, Associate Professor, Seattle University School of Law; and William Gould IV, Emeritus Professor, Stanford Law School.

Deborah La Fetra

Principal Attorney, Pacific Legal Foundation

Agency shop fees on the brink?

Alexis De Tocqueville was deeply impressed by America’s use of voluntary associations to pursue undertakings both large and small, in every aspect of life. Public employee unions may soon be included in that category of voluntary associations, as several justices in today’s oral argument in Friedrichs v. California Teachers Association seem poised to strike down laws that require non-union members to subsidize the union.

Some union advocates pinned their hopes on Justice Antonin Scalia, whose opinion in a 1991 union dues case (Lehnert v. Ferris Faculty Assn.) focused on the union’s duty to represent both members and non-members, and expressed concern about free-riders. But Justice Scalia’s focus today was on the mandatory, compulsive nature of the requirement that forces employees to contribute to any cause – whether they believe in it or not. Justice Anthony M. Kennedy reframed the issue from “free-riders” to “compelled-riders.” And Justice Scalia, as well as Chief Justice John G. Roberts, particularly keyed on Pacific Legal Foundation’s major focus in the case: that all public union collective bargaining is inherently political and affects public policy. The attorney representing the state of California first agreed that even core collective bargaining questions of wages and promotion are “necessarily political” but then tried to backtrack. Chief Justice Roberts asked for an example of a non-political issue in collective bargaining and the state’s attorney suggested “mileage reimbursements.” The justice disagreed, because “it’s all money” which is to say, tax dollars, that must be allocated amongst public education, public housing, welfare benefits, etc.

Justices Stephen G. Breyer and Ruth Bader Ginsberg raised the point that a decision in favor of the teachers here would have ripple effects in other areas, specifically some states’ requirement that all attorneys be members of and financially support the state bar association, and public universities’ assessment of student fees to subsidize a variety of political and ideological groups and activities. Friedrichs’ lawyer, Michael Carvin, distinguished those circumstances, but a broad First Amendment-based decision in Friedrichs could lead to renewed challenges to the integrated bar and mandatory student fees.

A win for Rebecca Friedrichs is a win for good public policy as well as constitutional rights. When the state gives public employee unions the exclusive power to seize workers’ earnings directly from their paychecks so that the union can turn around and lobby the government for yet more power, dissenting employees – and taxpayers – are shut out of any meaningful role. Returning the unions to their original status as voluntary associations restores the individual rights of all employees and the responsibilities of the public employee unions to earn member support.

Deborah La Fetra is a principal attorney at Pacific Legal Foundation. Since 1990, she has written dozens of amicus briefs and directly represented dissenters in challenges to state-compelled subsidization of politicking.

Charlotte Garden

Associate Professor, Seattle University School of Law

Union advocates pessimistic

Union advocates were mostly pessimistic heading into today’s argument in Friedrichs, but the justices’ questioning suggests that, if anything, they set their sights too high. The potential swing justices – Justice Antonin Scalia and Chief Justice John G. Roberts – were universally skeptical of the state/union position; in contrast, even the challengers’ more extreme arguments were met with tough questioning from only the four liberal-leaning justices.

That makes this case distinctly different from 2014’s Harris v. Quinn, another case about union fees. During argument in Harris, Justice Scalia struggled to reconcile the anti-union position with a series of cases limiting public employees’ First Amendment rights. Those cases are remarkable for their deference to public employers; as Justice Elena Kagan put it during the Friedrichs argument, they essentially ensure that “government be put in the same position as a private employer” vis-à-vis their own employees. This time, the conservative Justices, especially Justice Anthony M. Kennedy, suggested that they could distinguish the other public employee speech cases on the ground that more employees are affected by collective bargaining than other speech restrictions. That distinction is a new one in First Amendment law, but if today’s argument is anything to go by, it will attract five justices’ votes.

Charlotte Garden is an Associate Professor at Seattle University School of Law, and Litigation Director of the Korematsu Center for Law & Equality. You can follow her on Twitter at @CharlotteGarden

William Gould

Emeritus Professor, Stanford Law School

Not a good day for unions

In most states, when a majority of employees select a union as their representative it speaks exclusively so as to broker competing employee interests which would otherwise cause conflict. Agency shop agreements that require employees to pay dues are designed to finance the collective bargaining system: Everyone pays their share of expenses, whether union or non-union, given the fact that the union represents everyone and employees would have an incentive not to pay if they could get the same benefits possessed by those who do. But this basic point seemed lost to a majority of justices on the Court today. Said Chief Justice John G. Roberts: “If your employees have shown overwhelmingly that they want collective bargaining, then it seems to me the free-rider concern … is really insignificant.”

Justice Antonin Scalia, who some had counted upon to adhere to a four-decades-old Supreme Court holding that unions can compel the payment of dues that are not political but rather “germane” to collective bargaining – inasmuch as he had earlier expressed that view, now said: “The problem is everything that is collectively bargained with the government is within the political sphere, almost by definition. Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority…— all of those questions are necessarily political questions.” Thus, his reasoning this morning appeared to deny public employee unions the ability to charge dues on any subjects.

But it was Justice Anthony M. Kennedy who seemed to sum up the dominant mood of the Court best: “The union basically is making these teachers compelled riders for issues on which they strongly disagree. Many teachers think that they are devoted to the future of America, to the future of our young people,…but that the union is absolutely wrong in some of its positions.”

In a decision which is likely to politicize an already politicized Court further, it was clear that Justice Kennedy saw the unions as wrong-headed obstacles to the dissident teachers of which he spoke. And to the proposition that agency fees would promote efficiency and diminish strikes, Justice Scalia said: “I just absolutely don’t understand it. Why…would agency fees enable the city to do things that it couldn’t do before?”

“Outside advocacy groups”, as the dissidents’ lawyers characterized unions, are to be treated as untrustworthy adversaries. Conflict rather than cooperation will be the order of the day. The next step will be an attempt to invalidate constitutionally the system of exclusive bargaining representatives altogether. All in all, it was a very bad day at Black Rock when democracy in the workplace was diminished.

William Gould IV, an Emeritus Professor of Law at Stanford Law School where he specializes in labor law, was the Chairman of the National Labor Relations Board (1994-98) and is currently Chairman of the California Agricultural Labor Relations Board.

Comments Policy

Don4 years ago4 years ago

With the death of Scalia it’s an expected 4/4 tie and, therefore, the lower court ruling would stand until reheard at some future date. That could be awhile under the circumstances.

Paul4 years ago4 years ago

This could be a positive development for some teachers, but it would not be a positive development for U.S. society, as it would remove most funding (i.e., clout) from a liberal political voice.
Conservatives have always had mechanisms to use their money to advance their political agenda. This change would blunt an important liberal response.
I'd prefer simply reversing the current opt-out system, so that all represented teachers would pay the agency fee (the plaintiffs propose that … Read More

This could be a positive development for some teachers, but it would not be a positive development for U.S. society, as it would remove most funding (i.e., clout) from a liberal political voice.

Conservatives have always had mechanisms to use their money to advance their political agenda. This change would blunt an important liberal response.

I’d prefer simply reversing the current opt-out system, so that all represented teachers would pay the agency fee (the plaintiffs propose that teachers should pay nothing by default), and could opt-in to pay for costs above-and-beyond collective bargaining. Opting OUT of political costs is difficult and time-consuming (I chose to do it at times), and still requires up-front deduction of full dues, with a rebate sent by check a year later.

If the plaintiffs prevail, the proximate beneficiaries will be young teachers, whose dues have been supporting: 1. state-level lobbying to preserve a statutory regime that completely and absolutely separates the quality of their work from their chances of keeping their jobs when layoffs occur; and 2. local bargaining to maintain the principle of vastly unequal pay for work of nearly equal value, with salary scales granting junior teachers as little as half what their senior colleagues earn.

The long-term benefit to new teachers is questionable, though, as the ascendant conservatives generally favor lower school funding, lower salaries and benefits, and 100% at-will employment (a separate question from the law on seniority-based layoffs, which I assail above).

Phil4 years ago4 years ago

What is not mentioned is that fair share fee payers do not get to vote on collective bargaining contracts and other matters. In order to vote, they must pay full dues. Thus, unions are imposing a poll tax to vote, a long discredited procedure in the United States.

Gary Ravani4 years ago4 years ago

That is not necessarily true. Unions have the discretion to allow agency fee payers to vote on contracts. Some unions do, some don't. A good argument can be made that if you want all of the benefits and rights of being a union member, then become a union member. Whatever is actually approved of and contained in a contract are conditions that apply to agency fee members, and are enforced for agency fee members, as … Read More

That is not necessarily true. Unions have the discretion to allow agency fee payers to vote on contracts. Some unions do, some don’t. A good argument can be made that if you want all of the benefits and rights of being a union member, then become a union member. Whatever is actually approved of and contained in a contract are conditions that apply to agency fee members, and are enforced for agency fee members, as for actual full members of the union. Unions must do this as a condition of the law.

Gary Ravani4 years ago4 years ago

Those conservative five on the current Supreme Court are bound to go down in the history books as paragons of...conservative judicial objectivity. That is to say, they have no judicial objectivity. Everyone in the court room could tell they were "what news reports called hostile in their questioning of union lawyers." They had their judgments ready to go before the first word of testimony in the case. The rule of this Court's "law" is: Give … Read More

Those conservative five on the current Supreme Court are bound to go down in the history books as paragons of…conservative judicial objectivity. That is to say, they have no judicial objectivity. Everyone in the court room could tell they were “what news reports called hostile in their questioning of union lawyers.” They had their judgments ready to go before the first word of testimony in the case. The rule of this Court’s “law” is: Give ’em a fair trial and then hang ’em. What can you expect from “jurists” who think money is speech?

Brian4 years ago4 years ago

I totally disagree with the politics of the oil companies, banks, and some other organizations. They spend an enormous about of money to further their political agenda which are not the same as mine. I would like to have the choice to reject the portion of each sale that is used in their political activities.